Should Claimant s Lawyers Have a Monopoly on Informal Communications with Treating Physicians in Workers Compensation Cases?

Should Claimant s Lawyers Have a Monopoly on Informal Communications with Treating Physicians in Workers Compensation Cases? Prepared by Robert D. Ingram and Preston D. Holloway Moore Ingram Johnson & Steele LLP

Should Claimant s Lawyers Have a Monopoly on Informal Communications with Treating Physicians in Workers Compensation Cases? Prepared by Robert D. Ingram and Preston D. Holloway Moore Ingram Johnson & Steele LLP For decades in Georgia both plaintiffs lawyers and defense lawyers routinely communicated informally with plaintiff/claimant s treating physicians. The discoverability of a healthcare information was governed by Georgia statutes which clearly established that a plaintiff waived her right to privacy with regard to medical records that are relevant to a medical condition the plaintiff placed at issue in a civil or workers compensation proceeding. O.C.G.A. 24-9-40(a); or Sievert, 162 Ga. App. 677 (1982); O.C.G.A. 34-9-207. The defendant s lawyer was allowed to obtain the plaintiff s protected health information by formal discovery (subpoena, request for production of documents, physician depositions, etc.) or informally, by calling or meeting with a plaintiff s physician. 1 That changed when the Georgia Supreme Court determined that, in a medical malpractice case, the privacy rule of the Health Insurance Portability and Accountability Act ( HIPAA ) precluded defense counsel from informally interviewing the plaintiff s prior treating physicians without first complying with the HIPAA procedural safeguards. The Moreland court noted that, even though Georgia law authorized ex parte communications by virtue of the waiver which occurred when the plaintiff filed suit and thereby placed her medical condition at issue, HIPAA imposed more stringent restrictions on ex parte communications which expressly supersede any contrary provisions of state law. 284 Ga. at 733. The court went on to note that HIPAA prevents the treating physician from disseminating a patient s medical information, either orally or in writing, unless the patient expressly consents or a court protective order is issued insuring compliance with HIPPA s procedural safeguards. Two years later the Georgia Supreme Court clarified its Moreland decision in the case of Baker v. WellStar Health Systems, Inc., 288 Ga. 336 (2010). In that case, the court made it clear that neither HIPAA nor Georgia law precluded medical malpractice defense counsel from having private or ex parte communications with treating physicians for the plaintiff, provided that: 1) The patient consents by signing a valid authorization; or 2) After reasonable notification to the plaintiff/patient, a qualified protective order is entered prohibiting litigants from disclosing the protected health information outside of the proceeding and requiring the destruction or return of the information following the termination of the proceeding; and the order limits the ex parte inquiry to matters relevant to the medical condition at issue. Baker v. WellStar, 288 Ga. 336; 45 C.F.R. 164.512(e)(1)(ii)-(v). 1 In Moreland v. Austin, 284 Ga. 730 (2008), the Court imposed some restrictions on informal ex parte communication with the plaintiff s treating physicians but recognized such ex parte communication was authorized under Georgia law: Therefore, under Georgia law, once a plaintiff puts his medical condition in issue, defendant can seek plaintiff s protected health information by formal discovery, or informally, by communicating orally with a plaintiff s physicians. The question then is whether ex parte communication between defense counsel and plaintiff s physicians violate the HIPAA privacy rule. Page 2 of 7

Public policy favors a level playing field where lawyers for both sides are allowed to have informal ex parte communications with medical providers. Other courts have listed the many beneficial purposes served by allowing defense counsel to conduct ex parte interviews with treating physicians. Ex parte interviews serve the following beneficial purposes: (1) they equalize the access to fact witnesses between plaintiffs and defendants; (2) they diminish the overall cost of litigation by reducing the need to perform formal discovery; and (3) they equalize the cost of discovery, as both plaintiffs and defendants can access facts through informal discovery (otherwise, plaintiffs could conduct informal ex parte communications but defendants would have to pursue formal discovery). Moreover, where plaintiff has brought the action and waived [his] medical privilege, it seems inconsistent to allow [him] to assert HIPAA privacy to prevent the defense discovery of medical conditions and treatment, which would otherwise be permitted so long as they are used only for the purpose of the litigation. The principles of fundamental fairness to investigate the health condition of a plaintiff seeking money damages for injuries mandates that it is not necessary to give notice to plaintiff of a physician interview or contact, nor is it required that plaintiffs counsel be present. The interview and any notes thereof become defense counsel s work product and not subject to disclosure, but subject to destruction at the conclusion of the case. To rule otherwise would permit the plaintiff to use the physician-patient privilege as both a sword and a shield. Citing from Shorpshire v. Laidlaw Transit, Inc., 2005 WL 6232288 (E.D.Mich.2006). The bottom line is that, under Georgia law, a plaintiff still waives her right to privacy once the plaintiff puts her medical condition at issue and thereby authorizes a defendant or its attorney to communicate formally and informally with healthcare providers. However, in personal injury/tort cases, HIPAA imposes restrictions which require a defendant or its defense counsel to either obtain a signed authorization allowing ex parte communication or a qualified protective order which includes the HIPAA procedural safeguards. Application of HIPAA Restrictions to Workers Compensation Cases Most practitioners and administrative law judges in the workers comp system did not interpret the Moreland and Baker Supreme Court decisions as imposing the medical privacy constraints of HIPAA to workers compensation cases because HIPAA (as noted on the Form WC-207) expressly acknowledges that protected health information may be disclosed as authorized by and to the extent necessary to comply with laws relating to workers compensation... 2 See 42 CFR Part 2 and 45 CFR 164.12(1). In other words, although the Georgia Supreme 2 Attached is a copy of the Form WC-207 (see Exhibit A ) which quotes from O.C.G.A. 34-9-207 and from the applicable Federal Regulations acknowledging that HIPAA yields to State Workers Compensation laws addressing the disclosure of protected health information. This compromise was made by Congress when HIPAA was enacted to avoid creating impediments to quick access for medical information due to the expedited nature of workers compensation claims. Page 3 of 7

Court determined that the HIPAA privacy rule preempted Georgia law which authorized ex parte communication with healthcare providers, the HIPAA privacy rule did not extend to workers compensation cases because HIPAA expressly limited its application if a state s workers compensation law addressed the issue. Prior to the Court of Appeals decision in McRae v. Arby s, 2011 WL 6015797 (Ga. App. 2011), most assumed, based upon the language of O.C.G.A. 34-9-207, that employer/insurers and their lawyers could both obtain a claimant s medical records and informally speak with treating physicians regarding the claimant s medical treatment just like the claimant s lawyers. This assumption was based upon the following language included within the statute: When an employee has submitted a claim for workers compensation benefits or is receiving payment... that employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident... Notwithstanding any other provision of law to the contrary, when requested by the employer, any physician who has examined, treated or tested the employee or consulted about the employee shall provide within a reasonable time and for a reasonable charge all information and records related to the examination, treatment, testing or consultation concerning the employee. (Emphasis added). However, the 4/3 majority in the McRae case raised questions as to whether ex parte communication with healthcare providers are allowed by the employer/insurer or their defense counsel. The express holding of McRae is that the Workers Compensation Act does not require an employee to authorize her treating physician to communicate ex parte with the employer s lawyers in order to continue receiving benefits. The majority decision recognizes that the HIPAA privacy rule expressly permits the disclosure of information as authorized by and to the extent necessary to comply with the requirements of workers compensation laws." See 45 C.F.R. 164.512(1). However, the McRae majority interprets O.C.G.A. 34-9-207(a) as only waiving the HIPAA privacy rule in a limited manner, to allow the production of tangible medical records and not other information. In order to reach this conclusion, the majority determined that the phrase, all information and records 3 meant only medical records or tangible documentation. 4 The majority opinion in McRae makes it clear that the Workers Compensation Board cannot compel a claimant to sign an authorization allowing defense counsel to have private communication with treating physicians. Some argue that dicta in the majority decision goes further and restricts ex parte communications between treating physicians and employers, insurance adjusters, and defense counsel unless the requirements of the HIPAA privacy rule outlined in Baker v. WellStar Health Systems are followed. 3 See O.C.G.A. 34-9-207(a) 4 The dissenting opinion by Judge Blackwell points out that, the word information is generally understood to mean knowledge or data that is communicated to another, regardless of whether the knowledge or data has been memorialized in any tangible medium or exists only in the memory or voice of the person communicating it. McRae at page 5. Page 4 of 7

Limited Application of McRae Arguments in favor of a more limited application of McRae are supported by the majority decision s failure to reference Board Rule 200.1(a)(1)(iii). That rule expressly allows employers, insurers, and third party administrators to communicate with... the authorized treating physicians to assess, plan, implement, coordinate, monitor, and evaluate options and services relative to an injured employee s condition and/or vocational needs. Furthermore, since attorneys serve as an extension of the client serving as an agent on their behalf, some argue attorneys are allowed to continue communicating with treating physicians on an ex parte basis and that the majority McRae decision holds only that claimant s cannot be compelled to consent to allowing a defense lawyer to communicate ex parte with the claimant s treating physicians. If that interpretation of McRae is embraced by the Workers Compensation Board, the impact of McRae will be limited. Petition for Writ of Certiorari On January 3, 2012, Arby s Restaurant and Hartford Insurance Company filed a Petition for Writ of Certiorari with the Georgia Supreme Court seeking review of the 4 to 3 McRae opinion and judgment. 5 It is yet to be determined whether cert will be granted. If granted, amicus briefs will likely be submitted to the court by pro-employee groups and pro-employer groups as was the case after the Court of Appeals granted McRae s application for discretionary appeal. 6 Post McRae Recommendations In light of the uncertainty surrounding an employer/insurer s ability to conduct ex parte communications with medical providers, and in order to comply with the Workers Compensation Act's policy of quick access to medical information so that informed and expeditious decisions can be made regarding treatment, causation, medication authorization, and many others, we are encouraging employers and insurers to have employees sign the following documents at the time of hiring: 1) Employer Authorization for Release of Medical Records and Communication with Healthcare Providers (See Exhibit E ); and 2) Acknowledgement of Workers Compensation Rights (See Exhibit F ). These documents, if signed at the time of hiring, will minimize disputes and reduce litigation regarding the scope of the employee s authorization by making it clear that the 5 Attached is a copy of the Petition for Writ of Certiorari filed by Andy Hamilton, of Hamilton Westby Antonowich & Anderson, on behalf of Arby s Restaurant Group and Hartford Insurance Company. Exhibit B. 6 Attached is a copy of the GSIA Amicus Brief filed in support of the decisions of the ALJ, Appellate Division, and Superior Court in the McRae case. See Exhibit C. Also attached is an article published in the Georgia Workers Compensation Section Newsletter while the Court of Appeals case was pending, which responded to arguments made in support of expanding the Moreland v. Austin limitations on ex parte communications to Georgia workers compensation cases. The article is entitled Ex Parte Communications with Georgia Workers Compensation Physicians: If it Ain t Broke, Don t Fix It. Exhibit D. Page 5 of 7

employer and their representatives are entitled to obtain medical records and are also allowed to have private communication directly with healthcare providers. If the employer fails to obtain an authorization similar to the one referenced above, we recommend that insurance adjusters request a separate Insurer Authorization for the Release of Medical Records and Communication with Healthcare Providers from the injured worker when the accident is first reported (See Exhibit G ). If the foregoing medical authorizations cannot be obtained and the Board ultimately interprets the McRae majority decision to prevent all ex parte communication, employers and insurers should consider following the practice now being utilized in medical malpractice and tort cases by filing motions seeking qualified protective orders allowing equal access to the claimant s healthcare providers. Attached as Exhibit H is a draft Employer/Insurer s Motion for a Qualified Protective Order. 7 The problem with this approach is that it will increase attorney fees and litigation expenses and it will delay the prompt exchange of medical information which will delay compensability and treatment decisions thereby harming the injured employee. Proposed Legislation On January 30, 2012, the Legislative Committee of the State Board of Workers Compensation Advisory Council agreed to recommend proposed legislation amending O.C.G.A. 34-9-207 to add a new subsection (d) making it clear that it is the intent of the Legislature to clarify that the Georgia Workers Compensation Act and the Federal Health Insurance Portability and the Accountability Act (HIPPA) are to function so as to permit disclosure of medical information necessary to enable employers, insurers, and third-party administrators operating under the Workers Compensation Act to properly administer workers compensation claims. The proposed legislation, which is attached as Exhibit I, expressly states that nothing contained in O.C.G.A. 34-9-207 shall... preclude an employer, its insurer or third-party administrator from communicating orally, in writing, or electronically, directly with an employee s medical provider without the affirmative consent of the employee where the purpose of the communication is to assess, plan, implement, coordinate, monitor and evaluate options and health care services reasonably related to the condition for which such employee claims compensation. While this legislation does not address the specific issue raised in the McRae decision and while this legislation is silent regarding the involvement of attorneys, it should eliminate any arguments regarding the ability of adjusters to communicate directly with medical providers in order to sufficiently handle claims. Once the McRae case becomes final, by either the Supreme Court denying certiorari or granting certiorari and issuing a decision, it may become necessary for the State Board s Advisory Council to again propose legislation to address the issue of ex parte communication with medical providers in workers compensation cases. CONCLUSION Hopefully, the Supreme Court will not condone the McRae majority s decision to ignore the true meaning of the term information and instead will adopt the persuasive reasoning of 7 This draft Motion and Brief was prepared by Fred Hubbs of Hall Booth Smith & Slover. Page 6 of 7

Judge Blackwell in the dissenting opinion. If the Supreme Court does, it will be a victory for fundamental fairness which will benefit both employers and employees who need prompt and informal interaction with healthcare providers in order to expedite the handling of worker s compensation claims. Unlike tort claims, workers compensation claims need to move more quickly so that decisions regarding compensability, treatment, causation, medication authorization, and many others are expedited. While giving the claimant s attorneys a monopoly on ex parte communication sounds good to some claimant s attorneys, it is not in the interest of their employee/clients. Accordingly, the answer to the question is no. Claimant s lawyers should not have a monopoly on informal communications with treating physicians in workers compensation cases and the majority Court of Appeals decision in McRae should be reversed by the Supreme Court. Furthermore, the legislature should clarify that when it said employer/insurers are entitled to all information and records it meant what is said and did not intend to limit employers and insurers to just records. Page 7 of 7